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Drugs and Workers Compensation


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Workers Compensation law in regards to legal and illegal drugs in the workplace.

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Drugs and Workers Compensation

  1. 1. DRUGS AND WISCONSIN WORKER’S COMPENSATION LAW William R. Sachse, Jr Peterson, Johnson & Murray, S.C.
  3. 3. • Legal drugs are medical treatment for work-related injuries. – Wis. Stat. Sec. 102.42(1): “The employer shall supply such . . . medicines . . . as may be reasonably required to cure and relieve from the effects of the injury.” – The employee is not liable for any work-related drug expenses, unless he or she demands a specific brand of drug that was not specifically prescribed. Wis. Stat. Secs. 102.425 (2) and (4).
  4. 4. • An employer could be required to pay for a worker’s injury-related medical expenses for his or her lifetime. – Wis. Stat. Sec. 102.42(1): “The obligation to furnish such treatment . . . shall continue as required to prevent further deterioration in the condition of the employee or to maintain the existing status of such condition whether or not healing is completed.” – Expenses include “all out-of-pocket expenses incurred by the injured employee in obtaining the prescription drug dispensed.” Wis. Stat. Sec. 102.425(3)(b). Includes travel and parking costs.
  5. 5. • Wis. Stat. Sec. 102.425(2) prefers the use of generic drugs, unless: – There is no therapeutically equivalent generic – The generic and branded drugs cost the same – The drug prescriber does not believe the generic is an adequate substitute – Disputes over the cost of prescription drugs are resolved by the Worker’s Compensation Division.
  6. 6. • These medical providers can prescribe drugs and opine on whether they are necessary to cure and relieve the worker from the effects of the injury (medical causation): – Medical doctors – Osteopathic physicians – Psychologists – Chiropractors – Podiatrists
  7. 7. • These medical providers can prescribe drugs but may not opine on whether they are necessary to cure and relieve the worker from the effects of the injury (cannot opine on medical causation). – Dentists – Physician assistants – Advanced practice nurse prescribers
  8. 8. • Wis. Adm. Code Sec. DWD 81.06 (10) treatment guidelines regarding lower back pain say that opioids and narcotics should be used for “severe acute pain,” not “persistent low back pain.”
  9. 9. • Wis. Adm. Code Sec. DWD 81.07 (10) treatment guidelines regarding neck pain say that opioids and narcotics are for “severe acute pain,” not “persistent regional neck pain.”
  11. 11. • A work-related injury caused by intoxicated use of illegal drugs is not a defense to employer liability. – It is not a deviation from traveling employment to become so intoxicated that the employee passed out in bitter cold and lost several fingers due to frostbite. Heritage Mut. Ins. Co. v. Larsen, 2001 WI 30. – Wis. Stat. Sec. 102.58 cited as legislative intention to allow compensation for intoxication-caused injuries.
  12. 12. • A worker’s compensation for injury can be reduced by 15% of indemnity payments to a maximum of $15,000 per injury, where the employer proves: – Intoxication by alcohol or illegal drugs (same definition as for driving a motor vehicle). Wis. Stat. Sec. 102.58. – And that the intoxication caused the injury -- that the worker manifested signs of intoxication prior to the injury. Haller Beverage Corp. v. ILHR Dept., 49 Wis. 2d 233.
  13. 13. • Wis. Stat. Sec. 102.43(9) says that a worker may be denied temporary disability compensation under these conditions: – Worker violated a written and enforced drug (not alcohol) policy – Violation occurred during the healing period following an injury and after the worker had been released to “light duty” by a medical practitioner – Employer must have been willing to provide light work, but for the drug policy infraction – Compensation is reduced by pay that would have been provided
  14. 14. • Failure to pass a drug test upon a doctor’s release to unrestricted work following a work injury is “reasonable cause” to terminate the injured worker under Wis. Stat. Sec. 102.35(3). Wermuth v. Aldrich Chemical Co., WC No. 2003-015700 (LIRC July 28, 2005).
  15. 15. THE END